Asbestos defendants fighting to dismiss cases that don't belong in Madison County

Steve Gonzalez Jun. 30, 2007, 5:00am

When Madison County Circuit Judge Daniel Stack took over the court's massive asbestos docket in September 2004 he declared that the "astronomical burden" of looming trials demanded he dismiss cases that were not connected directly to Madison County.

Nearly three years later asbestos defendants are putting that declaration to the test by fighting to dismiss cases that don't seem to belong here.

Four defendant corporations which are regularly named in Madison County asbestos cases are asking Stack to dismiss several asbestos cases based on Forum Non Conveniens (FNC).

Union Carbide, Bayer Cropscience, Essex Specialty Products, and Dow Chemical, all represented by Heyl Royster in Edwardsville, filed nine FNC motions in the asbestos cases of one particular attorney: Randy Gori of the Edwardsville based Goldenberg firm.

In addition to the FNC motions, the four companies also filed motions for summary judgment and motions to compel in 21 other Gori cases.

In one instance, the companies ask Stack to dismiss a suit filed by Mary Roberts, as the administrator of her husband Delbert Roberts' estate.

"This case has simply no connection to Madison County or the State of Illinois, and the relevant private and public interest factors strongly favor dismissal in favor of an Ohio forum," wrote Barney Shultz of Heyl Royster.

Shultz argues that all of Roberts' medical treatment occurred outside of Madison County and that evidence related to his claims against defendants is located in Ohio, not Illinois.

"Ohio, the plaintiff's home state has the requisite connections to the parties, the witnesses, and the underlying events to make Ohio the most appropriate and convenient forum for adjudicating this lawsuit," Shultz wrote.

Shultz points to Roberts' deposition given prior to his death in which he states he was born in Kentucky and moved to Ohio in 1944, until his death earlier this year.

"There is no evidence that Delbert Roberts was exposed to asbestos in Illinois," Shultz wrote. "In fact, as Mr. Roberts admitted, it would be a fair statement that he has absolutely no connection to the State of Illinois."

According to Shultz, Roberts resided and worked exclusively in Montgomery County, Ohio, and had no idea where Madison County was located.

Court records show that all the witnesses for the case live near or around Kettering, Ohio, and that Mary Roberts lives in Dayton. His two children also live in Kettering.

During his career, Roberts worked as a yard worker and press operator at Simons, Ward & White in Dayton from 1944-1968, at the Sunshine Biscuit Company from 1949-50, Dayton Press from 1968-1975 and at Centerville School District as a maintenance man from 1975-1991.

Shultz argues that a key witness in the case, Maynard Nelson of Dayton, testified in his deposition that it would be extremely inconvenient for him to travel to Madison County to testify because he is elderly and suffers from nerve damage.

Nelson worked with Roberts at Simons and will be called to testify as a "site-witness" for the defendants.

Shultz argues that Nelson can either travel 16 miles to the Montgomery County courthouse in Ohio or over 300 miles to Madison County.

He also argues that all of Roberts' treating physicians and the facilities where he received treatment for his alleged asbestos-related disease are in Kettering.

According to Shultz, in Montgomery County 14,841 civil cases were pending during 2005, and only 4,452 pending at the end of the year compared to 15,913 pending civil cases at the end of 2005 in Madison County.

Shultz argues that Roberts' wife's choice of forum in Illinois is entitled to less deference because he never lived in Illinois and because no exposure occurred in Illinois.

Citing the Illinois Supreme Court decision in Dawdy v. Union Pacific, Shultz argues that a plaintiff who engages in forum shopping to suit their individual interests is contrary to the purposes behind venue rules.

"Plaintiff's curious selection of an out-of-state forum 345 miles from his residence, which has no plausible nexus of any kind to the circumstances that gave rise to his cause of action, raises profound questions as to why plaintiff would elect to commence his action in Illinois," Shultz wrote.

He argues that the only reasonable conclusion is that the plaintiff has engaged in forum shopping.

Shultz argues that just because one or more of the defendants are residents of Illinois is not enough to deny a FNC motion citing the case, Gridley v. State Farm.

He further argues that Madison County residents should not be burdened with jury duty and the costs of non-resident litigation.

Shultz argues that the laws of Illinois and Ohio are different in numerous areas affecting asbestos cases.

He also points to the Lipke rule, which prevents defendants in asbestos cases from introducing evidence of a plaintiff's exposure to asbestos products of parties not involved. In Ohio, the faults of others must be considered.

While representing Union Carbide in 2005, Shultz called Lipke "a naked legal fiction that turns orderly procedure on its head."

"It is an anachronism contrary to both sound law and sound science," Shultz stated.

He argues that damage caps are not recognized in Illinois, while Ohio has rules for caps on the recovery of damages.

Shultz also argues that Madison County's asbestos procedures do not override FNC principles.

"Plaintiffs often contest forum non conveniens motions on the ground that Madison County efficiently processes large numbers of asbestos cases by offering expedited procedures and opportunities for accelerated trial dates," Shultz wrote.

"The Illinois Supreme Court has never recognized such factors as relevant in forum non conveniens analysis and the Fifth District Court of Appeals has rejected the argument that Madison County's procedures are sufficient to deny a forum motion."

In responding to Shultz, Benjamin Schmickle of Goldenberg argues Shultz failed to provide facts regarding the private and public interest factors that overwhelmingly favor dismissal.

Schmickle also argues that their is no unfairness "burdening" citizens of Madison County with trial because they have a vested interest in the activities of foreign corporations that "distributed the very same deadly asbestos fibers here in Madison County."

He says that a defendant cannot argue that a forum is inconvenient to a plaintiff given the deference due to a plaintiff's choice of forum.

Stack has set the motions for July 5.

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Organizations in this Story

Heyl Royster
124 SW Adams St
Peoria, IL 61602

Dow Chemical
2030 Dow Center
Midland, MI 48674

Union Pacific
1400 Douglas St
Omaha, NE 68179

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